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Monmohan Dey Vs. Surabala Dasi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in54Ind.Cas.51
AppellantMonmohan Dey
RespondentSurabala Dasi
Cases ReferredHakimi Jan Bibi v. Mouze Ali
Excerpt:
criminal procedure code (act v of 1898), section 488 - maintenance--application for maintenance dismissed for default--second application, if lies. - .....magistrate was not is error in issuing a rule on this fresh application. i think, therefore, the present rule should be discharged and the magistrate directed to go on with the present proceedings.shamsul huda, j.2. i agree. there is no provision in the criminal procedure code which bars a second application under section 488 of that code. the only section to which reference may be made, in support of the contention that such an application is incompetent is section 403, not that the section applies in terms to proceedings under section 488 but that a principle similar to that underlying section 403 may be applied by analogy to cases of this kind. if we refer to that section, we find that in the explanation appended to it, it is stated that the dismissal of a complaint would be no bar.....
Judgment:

Walmsley, J.

1. This rule was obtained by one Mon Mohan De--the respondent in a proceeding under Section 483, Criminal Procedure Code. It appears that on the 11th November last year, the opposite party made an application to the Court of Presidency Magistrate under that section and on that a rule was issued. After some adjournments, the matter was transferred to the Honorary Magistrate Mr. Rustomji for disposal and in his Court the present petitioner and the woman--the opposite party--and the child were examined. Then there were frequent adjournments for one cause or another and eventually, on the 3rd April 1919, the rule was discharged on the ground that there were no witnesses for the prosecution present, On the 10th April 1919 the woman made a fresh application before the Chief Presidency Magistrate and a Rule was again issued upon the present petitioner and the proceedings instituted on that Rule are now pending. We have been asked to quash those proceedings, and the ground on which it is suggested that we should do so is that, after the Rule had been discharged by Mr. Rustomji, the woman had no right to make a second application under Section 488, Criminal Procedure Code, and that the Magistrate erred in granting a Rule. Our attention has been drawn to the case of Hakimi Jan Bibi v. Mouze Ali 1 C.L.J. 214 : 2 Cr. L.J. 213 and to an unreported case. It appears to ma that those cases may be distinguished on a vary important ground, namely, that in them evidence was gone into and there was an adjudication by the Magistrate as to the paternity of the child. That is a very broad distinction. In the present case, the Magistrate Mr. Rustomji did not purport to coma to any conclusion as to whether the child is or is not the son of the present petitioner. In my opinion, when the first Rule was discharged by Mr. Rustomji, it remained open to the woman to make a fresh application and the Magistrate was not is error in issuing a Rule on this fresh application. I think, therefore, the present rule should be discharged and the Magistrate directed to go on with the present proceedings.

Shamsul Huda, J.

2. I agree. There is no provision in the Criminal Procedure Code which bars a second application under Section 488 of that Code. The only section to which reference may be made, in support of the contention that such an application is incompetent is Section 403, not that the section applies in terms to proceedings under Section 488 but that a principle similar to that underlying Section 403 may be applied by analogy to cases of this kind. If we refer to that section, we find that in the explanation appended to it, it is stated that the dismissal of a complaint would be no bar to a trial on a fresh complaint : and that principle may be applied to this case. In this case, the complaint under Section 488, Criminal Procedure Code, was dismissed for default and there was no adjudication regarding the merits. I do not think, therefore, there is anything in the law which prevents that second application from being proceeded with.


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